The FBI’s Two-Pronged Investigation of Hillary Clinton

Judge Napolitano in the article below explains the
FBI’s investigation of Hillary Clinton. There are two aspects of the
investigation. The original source of her trouble is the charge that she failed
to safeguard national security secrets.

As Judge Napolitano explains, this crime does not
require intent and can result from negligence or simply from a lack of
awareness that a secret is being revealed, as in the case that Judge Napolitano
provides of the US Navy sailor who was prosecuted for espionage because a
“selfie” he sent to his girlfriend revealed a sonar screen in the background.
An even more egregious case is that of the US Marine who was prosecuted for
using email to alert superiors to the presence of an al-Quada operative inside
a US military compound. The email is considered unsecure and thus the Marine
was prosecuted for revealing a secret known only to himself.

In view of these unjustified prosecutions of US
military personnel, the FBI has no alternative to recommending that Hillary be
indicted.

Whether Hillary will be indicted ostensibly depends on
the Justice (sic) Department and the White House. In fact, it is unlikely that
either Wall Street or the military/security complex wants Hillary indicted as
both have invested too many millions of dollars in her presidential candidacy,
and both interest groups are more powerful than the Justice (sic) Department
and the White House.

I do not think that Hillary was a good US senator and
Secretary of State, and I do not think she is qualified to be President of the US. Nevertheless, I do wonder how important
are the secrets about which she is accused of negligance. Even the one possibly
serious disclosure that Judge Napolitano provides of Hillary forwarding a photo
from a satellite of a North Korean nuclear facility doesn’t strike me as
important. The North Koreans, along with the entirety of the world, know that
the US has satellites and communication intercepts operating against them 24/7.

Many things with secret classifications are not
secrets. In my career I had many security clearances. As staff associate,
Defense Appropriations Subcommittee, House Committee on Appropriations, I had
top secret clearances because secret weapon systems were at stake. It was a
joke among the staff that many of the “secrets” were available in the public
defense literature.

As Assistant Secretary of the Treasury I received the
CIA’s daily briefing of the President. It was boring reading. I came to the
conclusion that the CIA was not going to report anything of consequence that possibly
could turn out to be wrong.

Later, as a member of a secret Presidential committee
to investigate the CIA’s view of the Soviet Union’s ability to withstand an
arms race, I had very high clearances as the committee had subpoena power over
the CIA. If the Kremlin had had access to the top secret documents, all the
Kremlin would have learned is that the CIA had a much higher opinion of the
capability of the Soviet economy than did the Kremlin.

Distinguished law professors have concluded that the
US government classifies documents primarily in order to hide its own mistakes
and crimes. We see this over and over. The US government can escape
accountability for the most incredible mistakes and the worse crimes against
the US Constitution and humanity simply by saying “national security.”

In my opinion, it is the second FBI investigation of
Hillary that should be pursued. This is a much more serious possible offense.
There is suspicion that Bill and Hillary privatized their public offices and
turned them into a money faucet for themselves.

This is a serious problem everywhere in the West. A
few years out of office and Bill and Hillary can drop $3 million on their
daughter’s wedding. A year or so out of office and Tony Blair was worth $50
million. As an Assistant Secretary of Defense once told me, “European
governments report to us. We pay them, and we own them.”

In Anglo-American legal history, one foundation of
liberty is the requirement that crime requires intent. I do not believe that
Hillary intentionally revealed secrets. If she was negligent, that should be
made public and should be sufficient to disqualify her from occupying the White
House. What is clear to me is that the legal principle that crime requires
intent is far more important than “getting Hillary.” This foundational
principle of liberty should be protected even if it means letting Hillary go.

January 15, 2016 "Information Clearing House" - The federal criminal investigation of former
Secretary of State Hillary Clinton’s failure to secure state secrets was
ratcheted up earlier this week, and at the same time, the existence of a
parallel criminal investigation of another aspect of her behavior was made
known. This is the second publicly revealed expansion of the FBI’s
investigations in two months.

I have argued for two months that Clinton’s legal woes
are either grave or worse than grave. That argument has been based on the hard,
now public evidence of her failure to safeguard national security secrets and
the known manner in which the Department of Justice addresses these failures.

The failure to safeguard state secrets is an area of
the law in which the federal government has been aggressive to the point of
being merciless. State secrets are the product of members of the intelligence
community’s risking their lives to obtain information.

Before she was entrusted with any state secrets – indeed,
on her first full day as secretary of state – Clinton received instruction from
FBI agents on how to safeguard them; and she signed an oath swearing to comply
with the laws commanding the safekeeping of these secrets. She was warned that
the failure to safeguard secrets – known as espionage – would most likely
result in aggressive prosecution.

In the cases of others, those threats have been
carried out. The Obama Department of Justice prosecuted a young sailor for
espionage for sending a selfie to his girlfriend, because in the background of
the photo was a view of a sonar screen on a submarine. It prosecuted a heroic
Marine for espionage for warning his superiors of the presence of an al-Qaida
operative in police garb inside an American encampment in Afghanistan, because
he used a Gmail account to send the warning.

It also prosecuted Gen. David Petraeus for espionage
for keeping secret and top-secret documents in an unlocked drawer in his desk
inside his guarded home. It alleged that he shared those secrets with a friend
who also had a security clearance, but it dropped those charges.

The obligation of those to whom state secrets have
been entrusted to safeguard them is a rare area in which federal criminal
prosecutions can be based on the defendant’s negligence. Stated differently, to
prosecute Clinton for espionage, the government need not prove that she
intended to expose the secrets.

The evidence of Clinton’s negligence is overwhelming.
The FBI now has more than 1,300 protected emails that she received on her
insecure server and sent to others – some to their insecure servers. These
emails contained confidential, secret or top-secret information, the negligent
exposure of which is a criminal act.

One of the top-secret emails she received and
forwarded contained a photo taken from an American satellite of the North
Korean nuclear facility that detonated a device just last week. Because Clinton
failed to safeguard that email, she exposed to hackers and thus to the North
Koreans the time, place and manner of American surveillance of them. This type
of data is in the highest category of protected secrets.

Last weekend, the State Department released two
smoking guns – each an email from Clinton to a State Department subordinate.
One instructed a subordinate who was having difficulty getting a document to
Clinton that she had not seen by using a secure State Department fax machine to
use an insecure fax machine. The other instructed another subordinate to remove
the "confidential" or "secret" designation from a document
Clinton had not seen before sending it to her. These two emails show a pattern
of behavior utterly heedless of the profound responsibilities of the secretary
of state, repugnant to her sworn agreement to safeguard state secrets, and
criminal at their essence.

Also this past weekend, my Fox News colleagues
Katherine Herridge and Pamela Browne learned from government sources that the
FBI is investigating whether Clinton made any decisions as secretary of state
to benefit her family foundation or her husband’s speaking engagements. If so,
this would be profound public corruption.

This investigation was probably provoked by several
teams of independent researchers – some of whom are financial experts and have
published their work – who have been investigating the Clinton Foundation for a
few years. They have amassed a treasure-trove of documents demonstrating fraud
and irregularities in fundraising and expenditures, and they have shown a
pattern of favorable State Department treatment of foreign entities coinciding
with donations by those entities to the Clinton Foundation and their engaging
former President Bill Clinton to give speeches.

There are now more than 100 FBI agents investigating
Hillary Clinton. Her denial that she is at the core of their work is political
claptrap with no connection to reality. It is inconceivable that the FBI would
send such vast resources in the present dangerous era on a wild-goose chase.

It is the consensus of many of us who monitor
government behavior that the FBI will recommend indictment. That recommendation
will go to Attorney General Loretta Lynch, who, given Clinton’s former status
in the government and current status in the Democratic Party, will no doubt
consult the White House.

If a federal grand jury were to indict Clinton for
espionage or corruption, that would be fatal to her political career.

If the FBI recommends indictment and the attorney
general declines to do so, expect Saturday Night Massacre-like leaks of draft
indictments, whistleblower revelations and litigation, and FBI resignations,
led by the fiercely independent and intellectually honest FBI Director James
Comey himself.

That would be fatal to Clinton’s political career, as
well.

Andrew Peter Napolitano is a syndicated columnist
whose work appears in numerous publications, such as Fox News, The Washington
Times, and Reason.

COPYRIGHT 2016 ANDREW P.
NAPOLITANO

Dr. Paul Craig Roberts was Assistant Secretary of the Treasury for Economic Policy and associate editor of the Wall Street Journal. He was columnist for Business Week, Scripps Howard News Service, and Creators Syndicate. He has had many university appointments. His internet columns have attracted a worldwide following. Roberts' latest books areThe Failure of Laissez Faire Capitalism and Economic Dissolution of the West